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HomeMy WebLinkAboutAGENDA REPORT 2005 0406 CC REG ITEM 08BMOORPARK CITY COUNCIL AGENDA REPORT TO: The Honorable City Council / FROM: Steven Kueny, City Manager 4"' / rrEM s. Be CITY OF MOORPARK, CALIFORNIA City Council Meeting of N - (e -OW05 ACTION: /i bd i,et vim/ a}d -" DATE: March 30, 2005 (CC Meeting of April 6, 2005) SUBJECT: Consider an Ordinance of the City of Moorpark for Proposed Development Agreement Between Shea Homes, Limited Partnership and City of Moorpark Pertaining to Vesting Tentative Tract No. 5425. BACKGROUND: Proposed Vesting Tentative Tract Map No. 5425 owned by Shea Homes, Limited Partnership (Shea Homes) consists of approximately 14.8 acres including the private street of Fremont Street and 102 proposed single family attached and detached units. A City Council Public Hearing to consider the referenced Tract Map 5425, Residential Planned Development Permit No. 2003 -02, General Plan Amendment No. 2003 -02, and Zone Change No. 2003 -02, as well as a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program was opened on March 2, 2005 and continued to April 6, 2005. A City Council Ad Hoc Committee, consisting of Councilmembers Mikos and Parvin, was appointed to negotiate a proposed Development Agreement with Shea Homes. On March 2, 2005 the Ad Hoc Committee recommended that the Development Agreement be forwarded to the Planning Commission for a public hearing at its regular March 22, 2005 meeting and set for a Council Public Hearing on April 6, 2005. The City Council concurred with the Ad Hoc Committee's recommendation. DISCUSSION: On March 22, 2005 the Planning Commission considered the Development Agreement at a public hearing and adopted Resolution No. PC- 2005 -472 recommending to the City Council approval of the 000095 Shea Homes Development Agreement Agenda Report Page 2 March 30, 2005 Development Agreement with Shea Homes, Limited Partnership. Sections 6. and 7. list the Agreements by the Developer (Shea Homes) and City, respectively. These are generally similar to provisions contained in development agreements previously approved by the City. Per Section 6.9, Shea Homes will provide twenty (20) affordable housing units in this project. This is more than the minimum 15 percent (15 %) required under redevelopment law. The affordable units are proposed as follows: 1. Nine (9) for low income households (80% of median income) 2. Six (6) for very low income households (50% of median income) 3. Five (5) for moderate income households (110% of median income) Shea Homes has proposed using its smallest proposed model (approximately 1,600 square feet) to meet this requirement rather than constructing a smaller unit. This model is considered a single family attached unit, commonly referred to as a duplex unit. In prior projects, the allowed size of the units has generally ranged from about 1,050 to 1,250 square feet. The units in this project, however, are all three bedroom units, but as previously reported the Ad Hoc Committee and staff support this proposal because of the relatively large size of the units compared to other approved affordable units. In addition to the inclusion of 5 percent (5 %) of the project units for moderate income households added to the combined 15 percent (15 %) of total project units as affordable to low and very low income households, two other affordable housing provisions have been included in the proposed Development Agreement. The first item is the inclusion of a Purchase and Sale Agreement (for the 20 affordable units) as an attachment to the Development Agreement, as well as including additional language pertaining to affordable housing in the Development Agreement. This is in lieu of a requirement for a separate affordable housing plan and agreement to be approved at a later date. 000006 Shea Homes Development Agreement Agenda Report Page 3 March 30, 2005 The Purchase and Sale Agreement has been used for two prior developments to effectuate the sale of units from the developer to the City (or qualified First Time Home Buyer) at an affordable price. The second new provision will be first right of refusal at market rate for two additional units to be offered to the City for purchase prior to the general public. This would require the City to include any of these units in its affordable housing program for moderate income first time buyers. At the time the Council considered this proposed agreement on March 2, 2005, it included up to eight units for this purpose. These would be the approximate 1,600 square foot units which are the smallest of the proposed units in the project. Since that time, the Shea representatives have indicated there are only five more of the 1,600 square foot units in the project and want to make sure that some of these units can be available to the general public. Staff shares this concern and recommends including only two units (of the five 1,600 square foot units remaining in the project) for this purpose. Shea has agreed to provide two units in Tract 5133 for this purpose in addition to the seven low income affordable units and fee payments required of them. This will be included in the Purchase and Sale Agreement for Tract 5133. STAFF RECOMMENDATION: 1) Open the public hearing, take public testimony, and close the public hearing; 2) Introduce Ordinance No. for first reading and schedule second reading and adoption for April 20, 2005. SK:tm Attachment: Draft Ordinance for Proposed Development Agreement by and between the City of Moorpark and Shea Homes, Limited Partnership S: \City Manager \Everyone \ccagenda \Shea Homes Development Agr Agenda Rpt 0330 2005.doc 00009 ATTACHMENT ORDINANCE NO. 313 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND SHEA HOMES, LIMITED PARTNERSHIP WHEREAS, the Planning Commission of the City of Moorpark on March 22, 2005, did adopt Resolution No. PC 2005 -472 recommending to the City Council approval of Development Agreement No. 2003 -01, submitted by Shea Homes, Limited Partnership; and WHEREAS, at a duly noticed hearing on April 6, 2005, the City Council considered Development Agreement No. 2003 -01; and WHEREAS, the City Council on April 6, 2005, adopted the Mitigated Negative Declaration for the Shea Homes project consisting of General Plan Amendment No. 2003 -02, Zone Change 2003 -02, Vesting Tentative Tract Map 5425, Residential Planned Development No. 2003 -02, and Development Agreement No. 2003 -01, as having been completed in accordance with the California Environmental Quality Act (CEQA), the CEQA Guidelines, and the City's CEQA procedures; and WHEREAS, the City Council, after review and consideration of the information contained in the City Council staff reports and public testimony, has made a decision on this matter. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Moorpark does hereby find as follows: a. The Development Agreement is consistent with the General Plan as amended by General Plan Amendment No. 2003 -02. b. The Development Agreement and assurances that said agreement places upon the project are consistent with the intent and provisions of the Mitigated Negative Declaration. C. The Development Agreement is necessary to insure the public health, safety and welfare 0000-008 SECTION 2. The City Council hereby adopts Development Agreement No. 2003 -01 (attached hereto) between the City of Moorpark, a municipal corporation, and Shea Homes, Limited Partnership; and the City Clerk is hereby directed to cause one copy of the signed, adopted agreement to be recorded with the County Recorder no later than ten (10) days after the City enters into the development agreement pursuant to the requirements of Government Code Section 65868.5. SECTION 3. That if any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 4. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 5. The City Clerk shall certify to the passage and adoption of this Ordinance; shall enter the same in the book of original ordinances of said city; shall make a minute order of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star, a newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City of Moorpark, and which is hereby designated for that purpose. PASSED AND ADOPTED this day of , 2005. Patrick Hunter, Mayor ATTEST: Deborah S. Traffenstedt, City Clerk ATTACHMENT: Development Agreement No. 2003 -01 000099 Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code § 6103 Shea Homes Dev Agr 0328 2005.doc DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND SHEA HOMES, LIMITED PARTNERSHIP -1- ATTACEMNT O00100 THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 DEVELOPMENT AGREEMENT This Development Agreement ( "the Agreement ") is made and entered into on May 23, 2005, by and between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City ") and Shea Homes, Limited Partnership, the owner of real property within the City of Moorpark generally referred to as Vesting Tentative Tract Map 5425 (referred to hereinafter individually as "Developer "). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreements contained in this Agreement, City and Developer agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1. Pursuant to Government Code Section 65864 et seq. and Moorpark Municipal Code chapter 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within its boundaries for the development of such property in order to establish certainty in the development process. 1.2. Prior to approval of this Agreement, but after the approval of the Mitigated Negative Declaration (MND), Mitigation Measures, and Mitigation Monitoring and Reporting Program ( "the MMRP ") for the Project Approvals as defined in subsection 1.3 of this Agreement, the City Council of City ( "the City Council ") approved General Plan Amendment No. 2003 -02 ( "GPA 2003 -02 "), for approximately 14.8 acres of land within the City ( "the Property "), as more specifically described in Exhibit "A" attached hereto and incorporated herein, and changed the zoning of the Property pursuant to Zone Change No. 2003 -02 ("ZC 2003- 02"). 1.3. GPA 2003 -02, ZC 2003 -02, Vesting Tentative Tract Map 5425 (Tract 5425) and Residential Planned Development Permit No. 2003 -02 (RPD 2003 -02) [collectively "the Project Approvals "; individually "a Project Approval "] Shea Homes Dev Agr 0328 2005.doc -2- 000101 provide for the development of the Property and the construction of certain off -site improvements in connection therewith ( "the Project "). 1.4. By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, City agrees to limit the future exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement. 1.5. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals and this Agreement. Developer anticipates developing the Property over a minimum of three (3) years. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and conditions imposed upon the development of the Property pursuant to the Project Approvals and this Agreement and to provide the public benefits and improvements specified in this Agreement. 1.6. City and Developer acknowledge and agree that the consideration that is to be exchanged pursuant to this Agreement is fair, just and reasonable and that this Agreement is consistent with the General Plan of City, as amended by GPA 2003 -02. 1.7. On March 22, 2005, the Planning Commission of City commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing on March 22, 2005 recommended approval of the Agreement. 1.8. On April 6, 2005, the City Council commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing onApril 6, 2005, approved the Agreement by Ordinance No. 313( "the Enabling Ordinance "). 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may also be referred to hereinafter as "the site" or "the Project ". 3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to, each Party and each successive successor in interest thereto and constitute covenants that run with the Property. Whenever the Shea Homes Dev Agr 0328 2005.doc -3- 0001(1) 0 terms "City" and "Developer" are used herein, such terms shall include every successive successor in interest thereto, except that the term "Developer" shall not include the purchaser or transferee of any lot within the Project that has been fully developed in accordance with the Project Approvals and this Agreement. 3.1. Constructive Notice and Acceptance. Every person who acquires any right, title or interest in or to any portion of the Property except any lot within the Project that has been fully developed in accordance with the Project Approvals and this Agreement shall be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether or not any reference to the Agreement is contained in the instrument by which such person acquired such right, title or interest. 3.2. Release Upon Transfer. Upon the sale or transfer of any of Developer's interest in any portion of the Property, that Developer shall be released from its obligations with respect to the portion so sold or transferred subsequent to the operative date of the sale or transfer, provided that the Developer (i) was not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer, delivered to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. 3.3 In the event of a partial assignment or transfer, the assumption agreement referenced in subsection 3.2 shall include provisions acceptable to the City to ensure that the phased construction of affordable housing units contemplated by Section 6.9 is achieved, regardless of the identity or number of developers of the Project. Shea Homes Dev Agr 0328 2005.doc 000103 0 5 Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and this Agreement. 4.2. Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement. 4.3. Building Standards. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the National Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Housing Code, the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Code for Building Conservation and the Uniform Administrative Code in effect at the time the plan check or building permit is approved and to any federal or state building requirements that are then in effect (collectively "the Building Codes "). 4.4. Reservations and Dedications. All reservations and dedications of land for public purposes that are applicable to the Property are set forth in the Project Approvals and this Agreement. Vesting of Development Rights. 5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to provide for the timing or rate of development resulted in a later - adopted initiative restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment. Shea Homes Dev Agr 0328 2005.doc In furtherance of the Parties intent, as set forth in this subsection, no future amendment of any existing -5- 000104 City ordinance or resolution, or future adoption of any ordinance, resolution or other action, that purports to limit the rate or timing of development over time or alter the sequencing of development phases, whether adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property provided the Property is developed in accordance with the Project Approvals and this Agreement. Nothing in this subsection shall be construed to limit City's right to insure that Developer timely provides all infrastructure required by the Project Approvals, Subsequent Approvals, and this Agreement. 5.2. Amendment of Project Approvals. No amendment of any of the Project Approvals, whether adopted or approved by the City Council or through the initiative or referendum process, shall apply to any portion of the Property, unless the Developer has agreed in writing to the amendment. 5.3. Issuance of Subsequent Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps (e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps), subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and landscaping plans) , encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project (collectively "the Subsequent Approvals "; individually "a Subsequent Approval ") shall be consistent with the Project Approvals and this Agreement. For purposes of this Agreement, Subsequent Approvals do not include building permits. Shea Homes Dev Agr 0328 2005.doc Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City (collectively "City Laws "), except City Laws that: aM. 000105 (a) change any permitted or conditionally permitted uses of the Property from what is allowed by the Project Approvals; (b) limit or reduce the density or intensity of the Project, or any part thereof, or otherwise require any reduction in the number of proposed buildings or other improvements from what is allowed by the Project Approvals. (c) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner, provided that all infrastructure required by the Project Approvals to serve the portion of the Property covered by the Subsequent Approval is in place or is scheduled to be in place prior to completion of construction; (d) are not uniformly applied on a City -wide basis to all substantially similar types of development projects or to all properties with similar land use designations; (e) control residential rents; (f) prohibit or regulate development on slopes with grades greater than 20 percent, including without limitation Moorpark Municipal Code Chapter 17.38 or any successor thereto, within the Property; or (g) modify the land use from what is permitted by the City's General Plan Land Use Element at the operative date of this Agreement or that prohibits or restricts the establishment or expansion of urban services including but not limited to community sewer systems to the Project. 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire ten (10) years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the provisions of Government Code Section 66452.6(a) or the fact that the final map may be filed in phases. Developer hereby waives any right that it may have under the Subdivision Map Act, Government Code Section 66410 et seq., or any successor thereto, to apply for an extension of the time at which Shea Homes Dev Agr 0328 2005.doc -7- 000106 the tentative map expires pursuant to this subsection. No portion of the Property for which a final map or parcel map has been recorded shall be reverted to acreage at the initiative of City during the term of this Agreement. The term of any Subsequent Approval, except a tentative map or subdivision improvement or other agreements relating to the Project, shall be one year; provided that the term may be extended by the decision maker for two (2) additional one (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's Department of Community Development prior to the expiration of that Approval. Each such Subsequent Approval shall be deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City's Building Inspector prior to the expiration of that Approval. It is understood by City and Developer that certain Subsequent Approvals may not remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement, any Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. 5.5. Modification Of Approvals. Throughout the term of this Agreement, Developer shall have the right, at its election and without risk to or waiver of any right that is vested in it pursuant to this section, to apply to City for modifications to Project Approvals and Subsequent Approvals. The approval or conditional approval of any such modification shall not require an amendment to this Agreement, provided that, in addition to any other findings that may be required in order to approve or conditionally approve the modification, a finding is made that the modification is consistent with this Agreement and does not alter the permitted uses, density, intensity, maximum height, size of buildings or reservations and dedications as contained in the Project Approvals. 5.6. Issuance of Building Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from Developer if all infrastructure required by the Project Approvals, Subsequent Approvals, and this Agreement to serve the portion of the Property covered by the building permit Shea Homes Dev Agr 0328 2005.doc 000107 is in place or is scheduled to be in place prior to completion of construction and all of the other relevant provisions of the Project Approvals, Subsequent Approvals and this Agreement have been satisfied. Consistent with subsection 5.1 of this Agreement, in no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.7. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City- wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. 6.1. Developer shall comply with (i) this Agreement, (ii) the Project Approvals, (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant and (iv) the MMRP of the MND and any subsequent or supplemental environmental actions. 6.2. All lands and interests in land dedicated to City shall be free and clear of liens and encumbrances other than easements or restrictions that do not preclude or interfere with use of the land or interest for its intended purpose, as reasonably determined by City. 6.3. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the Property, Developer shall pay City a development fee as described herein (the "Development Fee "). The Development Fee may be expended by City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Development Fee shall be Eight Thousand Eight Hundred Ninety -Five Dollars ($8,895.00) per residential unit and Forty Thousand Twenty -Eight Dollars ($40,028.00) per gross Shea Homes Dev Agr 0328 2005.doc 000:108 acre of institutional land on which the use is located. The fee for both residential and institutional uses shall be adjusted annually commencing one (1) year after the first residential or institutional building permit is issued within Tract 5425 by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month which is four (4) months prior to the month in which the first residential building permit is issued within Tract 5425 (e.g., if the permit issuance occurs in October, then the month of June is used to calculate the increase). In the event there is a decrease in the referenced Index for any annual indexing, the Development Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.4. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the Property, Developer shall pay City a traffic mitigation fee as described herein ( "Citywide Traffic Fee "). The Citywide Traffic Fee may be expended by City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Citywide Traffic Fee shall be Five Thousand Seventy -Five Dollars ($5,075.00) per residential unit, and Twenty -Two Thousand, Eight Hundred Thirty -Eight Dollars ($22,838.00) per acre of institutional land on which the institutional use is located. Commencing on January 1, 2006, and annually thereafter, both categories of the Citywide Traffic Fee shall be increased to reflect the change in the State Highway Bid Price Index for the twelve (12) month period that is reported in the latest issue of the Engineering News Record that is available on December 31 of the preceding year ( "annual indexing "). At its sole discretion, the City may use the Highway Construction Cost Index published by CalTrans in lieu of the State Highway Bid Price Index. In the event there is a decrease in the referenced Index for any annual indexing, the Citywide Traffic Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. Shea Homes Dev Agr 0328 2005.doc Mole U00109 6.5. As a condition of issuance of a building permit for each residential or institutional use within the boundaries of the Property, Developer shall pay City a community services fee as described herein (Community Services Fee). The Community Services Fee may be expended by City in its sole and unfettered discretion. The amount of the Community Services Fee shall be Two Thousand, Two Hundred Thirty -Three Dollars ($2,233.00) per residential unit, and Seven Thousand Seventy Dollars ($7,070.00) per gross acre of institutional land on which the institutional use is located. Commencing on January 1, 2008, and annually thereafter, the Community Services Fee for both residential and institutional uses shall be adjusted by any increase in the Consumer Price Index (CPI) until all Community Services Fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month of August over the prior month of August. In the event there is a decrease in the CPI for any annual indexing, the Community Services Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.6. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, Project Approvals, and MND. 6.7. Prior to the issuance of the building permit for each residential dwelling unit within the Property, Developer shall pay a fee in lieu of the dedication of parkland and related improvements (Park Fee). On the operative date of this Agreement, the amount of the Park Fee shall be Eight Thousand Two Hundred Forty Dollars ($8,240.00) for each residential dwelling unit and Fifty Cents ($.50) per square foot of each building used for institutional purposes within the Property. The fee for both residential and institutional uses shall be adjusted annually commencing one (1) year after the first residential or institutional building permit is issued within Tract 5425 by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using Shea Homes Dev Agr 0328 2005.doc -11- 000110 the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month which is four (4) months prior to the month in which the first residential building permit is issued within Tract 5425 (e.g., if the permit issuance occurs in October, then the month of June is used to calculate the increase). In the event there is a decrease in the referenced Index for any annual indexing, the Park Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. Developer agrees that the above - described payments shall be deemed to satisfy the parkland dedication requirement set forth at California Government Code Section 66477 et seq. for the Property. 6.8. Provided that prior to recordation of the first final map for Tract 5425 or March 31, 2006, whichever is later, Ventura County Waterworks District No. 1 or any successor entity confirms that it has sufficient recycled water to serve the public and community owned landscaped areas within Tract 5425, then Developer shall construct appropriately sized water lines, pumping facilities, and storage facilities for recycled water consistent with the requirements of the City, Waterworks District No. 1 and Calleguas Water District. Said lines shall be installed prior to the final cap being placed on all streets. Developer shall provide service including payment of any connection and meter charges and shall use recycled water for medians and parkways for all public streets, and any other public and commonly owned landscaping and recreation areas. The amount of recycled water needed and areas to be irrigated by recycled water shall be determined by City at its sole discretion. The recycled water line(s) shall be installed for each City approved phase of development and the recycled water shall be in use prior to the first occupancy approval for each City approved phase of development if such recycled water is available within one -half mile of the Property. Developer shall install dual water meters and services for all locations determined necessary by City at its sole discretion to insure that both potable and recycled water are available where restroom and drinking fountains are planned. Shea Homes Dev Agr 0328 2005.doc -12- 000111_ 6.9. Developer shall provide nine (9) three (3) bedroom and two bath family attached units with a minimum of 1,600 square feet to be sold to buyers who meet the criteria for low income (80 percent or less of median income); six (6) three (3) bedroom and two (2) bath single family attached units with a minimum of 1,600 square feet to be sold to buyers who meet the criteria for very low income (50 percent or less of median income); and five (5) three (3) bedroom and two (2) bath single family attached units with a minimum of 1,600 square feet to be sold to buyers who meet the criteria for moderate income (120 percent or less of median income). All single family attached units shall include a standard size two -car garage with roll -up garage door and a minimum driveway length of eighteen (18) feet measured from the back of sidewalk, meet minimum setback requirements of RPD 2003 -02, include concrete roof tiles, and other amenities provided in the market rate housing of this Project (e.g., air conditioning /central heating, washer /dryer hookups, garbage disposal, built -in dishwasher, concrete driveway, automatic garage door opener). The aforementioned twenty (20) units are collectively referred to as the affordable housing units or affordable units. Shea Homes Dev Agr 0328 2005.doc Developer further agrees that it has the obligation to provide the required number of affordable housing units as specified above regardless of the cost to acquire or construct said housing units. Developer further agrees that City has no obligation to use eminent domain proceedings to acquire any of the required housing units and that this subsection 6.9 is specifically exempt from the requirements of subsection 7.2 of this Agreement. Prior to recordation of the first final Tract Map for this Project, the parties agree to execute a Purchase and Sale Agreement which further sets forth the Developer's obligations of this subsection 6.19. and City's obligations per subsection 7.7. The Purchase and Sale Agreement shall be in the form attached hereto as Exhibit "C ". The Developer agrees to pay all City costs for preparation of the Purchase and Sale Agreement and its implementation and administration through the sale and occupancy of the last of the twenty (20) affordable housing units. -13- 000112 Shea Homes Dev Agr 0328 2005.doc The Developer agrees that the intent of this subsection 6.19. and the Purchase and Sale Agreement is to provide the twenty (20) affordable housing units consistent with applicable State and Federal laws and that said units remain affordable for the longest feasible time. Developer further agrees that the City at its sole discretion will make all decisions pertaining to the selection of eligible first time home buyers and all requirements placed on the sale of the twenty (20) affordable housing units to said buyers. The difference between the initial purchase price by a qualified buyer and market value shall be retained by the City as a second deed of trust. The actual initial purchase price (Affordable Sales Price) paid by a qualified buyer, market value, buyer eligibility, resale restrictions, equity share and second trust deed provisions, and any other items determined necessary by the City will be approved by the City Council in its sole and unfettered discretion prior to or at such time as qualified buyers are selected to purchase the affordable housing units. All units shall meet the criteria of all applicable State laws to qualify as newly affordable to moderate income, low income and very low income persons (in the quantity as specified in this Agreement) to satisfy a portion of the City's RHNA obligation and the Moorpark Redevelopment Agency's affordable housing goals. None of the affordable units required by this Agreement shall duplicate or substitute for the affordable housing requirement of any other developer or development project. All subsequent approvals required of City under this subsection 6.9 shall be made at City's sole discretion. If any conflict exists between this Agreement and the Purchase and Sale Agreement or the conditions of approval for Tract Map No. 5425 and /or RPD No. 2003 -02, then the provision providing the City the most favorable language for assisting eligible first time home buyers who meet the qualification of moderate, low and low income shall prevail. -14- 000113 Shea Homes Dev Agr 0328 2005.doc Developer agrees to provide the same home warranties associated with the market rate units in the same project as the affordable units for the maximum time required by State law, but in no event less than ten (10) years. Developer agrees that all such warranties shall inure to the benefit of and be enforceable by the ultimate occupants of the moderate income, low income and very low income units, and that all warranties by subcontractors and suppliers shall inure to the benefit of and be enforceable by such occupants. The qualified buyer (or City in lieu of a qualified buyer at its sole discretion) shall have the same choices of finish options as purchasers of other units in the project and final walk- through approval of condition of unit before close of sale. Any options provided to buyers of units shall be provided to buyer(s) of the required units including but not limited to color and style choices for carpeting and other floor coverings. Flooring selections shall be made within 10 days of Developer's request for selection. In the event the monthly HOA fees for the affordable units exceed $100.00 for each affordable unit, Developer shall deposit $120.00 for each dollar or portion thereof of the monthly HOA fees that are in excess of $100.00 into a City administered trust to assist with future HOA fees for each affected affordable unit. The Affordable Sales Price for the low- income buyers shall not exceed affordable housing cost, as defined in Sec. 50052.5(b) (2) of California Health and Safety Code. For a household of 4, the current monthly "affordable housing cost" would be 30% times 70% of $80,600.00, the current median income for a household of 4 in Ventura County, divided by 12. This monthly amount includes the components identified in Section 6920 of Title 25 of the California Code of Regulations shown below. (See Section 50052.5(c) of the Health and Safety Code.) The Affordable Sales Price for a low income household of 4 would be $165,000.00 under current market conditions, based upon the following assumptions: -15- 00114 Low Income Buyer Household of Four Item Detail Amount Affordable Sales Price $165,000 Down Payment 5% of Affordable Sales Price $8,250 Loan Amount Affordable Sales Price less down payment $156,750 Interest Rate 5.95% Property Tax 1.25% of Affordable Sales Price $172/mo. HOA $100 /mo. Fire Insurance $20 /mo. Maintenance $30 /mo. Utilities $171/mo. The Affordable Sales Price for a low income household of five or more would be based on the affordable housing cost for the actual household size. The assumptions associated with the above purchase price figures for low income households include a 5% down payment, based on the Affordable Sales Price , mortgage interest rate of 5.95 %, no mortgage insurance, property tax rate of 1.25 %, based on Affordable Sales Price, homeowners, association dues of 100 per month, fire insurance of $20 per month, maintenance costs of $30 per month, and utilities of $171 per month for a household of 4, assuming a 3 bedroom unit. The Affordable Sales Price for the very low income buyers shall not exceed affordable housing cost, as defined in Section 50052.5(b)(2) of California Health and Safety Code. For a household of 4, the current monthly "affordable housing cost" would be 30% times 50% of $80,600.00, the current median income for a household of 4 in Ventura County, divided by 12. This monthly amount includes the components identified in Section 6920 of Title 25 of the California Code of Regulations shown below. (See Section 50052.5(c) of the Health and Safety Code.) The Affordable Sales Price for a very low income household of 4 or fewer would be $104,000.00 under current market conditions, based upon the following assumptions: Shea Homes Dev Agr 0328 2005.doc -16- 000115 Very Low Income Buyer Household of Four Item Detail Amount Affordable Sales Price $104,000 Down Payment 5% of Affordable Sales Price $5,200 Loan Amount Affordable Sales Price less down payment $98,800 Interest Rate 5.95% Property Tax 1.25% of Affordable Sales Price $108 /mo. HOA $100 /mo. Fire Insurance $20 /mo. Maintenance $30 /mo. Utilities $171/mo. That Affordable Sales Price for a very low income household of five or more would be based on the affordable housing cost for the actual household size. The assumptions associated with the above purchase price figures for very low income households include a 5% down payment, based on the Affordable Sales Price, mortgage interest rate of 5.95 %, no mortgage insurance, property tax rate of 1.25 %, based on Affordable Sales Price, homeowners' association dues of $100 per month, fire insurance of $20 per month, maintenance costs of $30 per month, and utilities of $171 per month for a household of 4, assuming a 3 bedroom unit. Moderate Income Buyer Household of Four The Affordable Sales Price for the moderate income buyers shall not exceed affordable housing cost, as defined in Sec. 50052.5(b) (2) of California Health and Safety Code. For a household of 4, the current monthly "affordable housing cost" would be 35% times 110% of $80,600.00, the current median income for a household of 4 in Ventura County, divided by 12. This monthly amount includes the components identified in Section 6920 of Title 25 of the California Code of Regulations shown below. (See Section 50052.5(c) of the Health and Safety Code.) The Affordable Sales Price for a moderate income Shea Homes Dev Agr 0328 2005.doc -17- 000IIG household of 4 would be $313,000.00 under current market conditions, based upon the following assumptions: Item Detail Amount Affordable Sales Price $313,000 Down Payment 5% of Affordable Sales Price $15,650 Loan Amount Affordable Sales Price less down payment $297,350 Interest Rate 5.95% Property Tax 1.25% of Market Price $326/mo. HOA dues $100 /mo. Fire /casualty ins. $50 /mo. Maintenance $30 /mo. Utilities $171/mo. Shea Homes Dev Agr 0328 2005.doc That Affordable Sales Price for a moderate income household of five or more would be based on the affordable housing cost for the actual household size. The assumptions associated with the above purchase price figures for moderate income households include a 5% down payment based on the Affordable Sales Price, mortgage interest rate of 5.95 %, no mortgage insurance, property tax rate of 1.25 %, based on Affordable Sales Price, homeowners, association dues of $100 per month, fire insurance of $20 per month, maintenance costs of $30 per month, and utilities of $171 per month for a household of 4, assuming a 3 bedroom unit. Developer acknowledges that changes in market conditions may result in changes to the Affordable Sales Price, down payment amounts, mortgage interest rates, and other factors for the moderate, low income and very low income buyers. Furthermore, if "affordable housing cost ", as defined in Section 50052.5 of California Health and Safety Code, should change in the future, the above guidelines will be modified to achieve substantially the same result as would otherwise have been obtained had it not been changed. In the event the City, at its sole discretion purchases one or more of the affordable units from Developer in lieu of a qualified buyer, the Affordable Sales Price shall be based on a household size of 4 persons and 000117 Shea Homes Dev Agr 0328 2005.doc consistent with all requirements of this subsection 6.9. Developer agrees that prior to and upon the sale of a required unit to a qualified buyer (or City in lieu of a qualified buyer as determined by City at its sole discretion), City may at its sole discretion take any actions and impose any conditions on said sale or subsequent sale of the unit to ensure ongoing affordability to low and very low income households and related matters. After the sale of a housing unit by Developer to a qualified buyer (or City in lieu of a qualified buyer as determined by City at its sole discretion), City, not Developer, shall have sole responsibility for approving any subsequent sale of that affordable housing unit. Developer shall pay closing costs for each unit, not to exceed $6,000. Beginning March 1, 2007, and on March 1St for each of fifteen subsequent years, the maximum $6,000 to be paid for closing costs shall be increased annually by any percentage increase in the Consumer Price Index (CPI) for All Urban Consumers for Los Angeles /Orange /Riverside metropolitan area during the prior year. The calculation shall be made using the month of December over the prior month of December. In the event there is a decrease in the CPI for any annual indexing, the amount due shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. The referenced Developer funded closing costs shall be for the benefit of qualified buyers (or City in lieu of qualified buyers as determined by City at its sole discretion for one or more of the required units) in their acquisition of a unit from Developer not Developer's acquisition of a unit from one or more third parties. The Developer's escrow cost shall not exceed the then applicable maximum amount per unit regardless of the number of escrows that may be opened on a specific unit prior to the closing of the initial sale to a qualified buyer or City in lieu of a qualified buyer. No less than thirty (30) days prior to the offering for sale to the general public of units 33 and 80 as approved by RPD 2003 -02, with approximately 1600 square feet (units), Developer shall provide City with notice of said intended sale. Said notice shall include the proposed sale price. Within thirty (30) days of receiving said notice, City may purchase one or both of the above - referenced units and enter into escrow at the -19- 000118 stated price or such other price as may be negotiated by the parties. Developer warrants that said price shall be no higher than what would be offered to a bona fide qualified purchaser from the general public. City warrants that if it exercises its right to purchase, it will purchase said units for the purpose of reselling it to a qualified first time home buyer with income not exceeding moderate income. Upon mutual agreement of the parties, said first time home buyer may be substituted for City with the requirement that the City will work with buyer to finance the purchase of the unit. Buyer gets all the same new home warranties as the purchase of any market rate unit in the Project. The Developer with the written approval of the City Manager or designee may substitute a different unit location within the Project for either unit 33 or 80 so long as the unit contains no less than 1,600 square feet. The location of the twenty (20) affordable units within the Project and the schedule for providing the affordable units by the Developer to qualified buyers or City in lieu of said buyers shall be included in the Purchase and Sale Agreement. 6.10. Developer agrees that the Mitigation Measures included in the City Council approved MND and MMRP, or subsequent environmental clearance document approved by the Council, set forth the mitigation requirements for air quality impacts. Developer agrees to pay to City an air quality mitigation fee, as described herein (Air Quality Fee), in satisfaction of the Transportation Demand Management Fund mitigation requirement for the Project. The Air Quality Fee may be expended by City in its sole discretion for reduction of regional air pollution emissions and to mitigate residual Project air quality impacts. Shea Homes Dev Agr 0328 2005.doc At the time the Fee is due, City may at its sole discretion require Developer to purchase equipment, vehicles, or other items, contract and pay for services, or make improvements for which Developer shall receive equivalent credit against Air Quality Fee payments or refund of previous payments. The Air Quality Fee shall be One Thousand, Six Hundred, Thirty -Six Dollars ($1,636.00) per residential unit to be paid prior to the issuance of each building permit for the first residential unit in Tract 5130. Commencing on March 1, 2007, and annually thereafter -20- 000119 the Air Quality Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month of December over the prior month of December. In the event there is a decrease in the CPI for any annual indexing, the fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. For institutional uses, the Air Quality Fee shall be calculated by the Director of Community Development consistent with the then applicable Ventura County Air Quality Management District URBEMIS Model prior to the first occupancy approval for each institutional use. 6.11. Developer hereby waives any right that it may have under California Government Code Section 65915 et. seq., or any successor thereto, or any other provision of Federal, State, or City laws or regulations for application or use of any density bonus that would increase the number of dwelling units approved to be constructed on the Property. 6.12. Developer agrees to cast affirmative ballots for the formation of one or more assessment districts and levying of assessments, for the maintenance of parkway and median landscaping, street lighting, including but not limited to all water and electricity costs, and if requested by the City Council, parks for the provision of special benefits conferred by same upon properties within the Project. Developer further agrees to form one or more property owner associations and to obligate said associations to provide for maintenance of parkway and median landscaping, street lighting, and if requested by the City Council, parks in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property owners, or if the assessment district is invalidated by court action. Prior to recordation of the first final map for the Property, if required by City at its sole discretion, Developer shall also form one or more property owner associations to assume ownership and maintenance of open space land, trails, storm water Shea Homes Dev Agr 0328 2005.doc -21- 000120 detention and /or debris basins and related drainage facilities, landscaping, and other amenities, and to comply with the National Pollutant Discharge Elimination System (NPDES) requirements of the Project. The obligation of said property owner associations shall be more specifically defined in the conditions of approval of Tract 5425 and RPD 2003 -02. 6.13. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City capital improvement, development, and processing fees at the rate and amount in effect at the time the fee is required to be paid. Said fees include but are not limited to Library Facilities Fees, Police Facilities Fees, Fire Facilities Fees, drainage, entitlement processing fees, and plan check and permit fees for buildings and public improvements. Developer further agrees that unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operative date of this Agreement and such future fees imposed as determined by City in its sole discretion so long as said fee is imposed on similarly situated properties. 6.14. Developer shall pay the Los Angeles Avenue Area of Contribution (AOC) fee for each residential lot and institutional use prior to the issuance of a building permit for each lot or use. The AOC fee shall be the dollar amount in effect at the time of issuance of the building permit for each residential lot and institutional use. 6.15. The street improvements for all streets scheduled for dedication to the City shall be designed and constructed by Developer to provide for a 50 -year life as determined by the City Engineer. 6.16. Developer agrees that any fees and payments pursuant to this Agreement and for vesting Tentative Tract Map No. 5133 shall be made without reservation, and Developer expressly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary thereto. Developer further agrees that the fees it has agreed to pay pursuant to subsections 6.3 and 6.5 of this Agreement are not public improvement fees collected pursuant to Government Code Section 66006 and statutes amendatory or supplementary thereto. Shea Homes Dev Agr 0328 2005.doc -22- 0 00121 7 6.17. Developer agrees to comply with Section 15.40.150 of the Moorpark Municipal Code and any provision amendatory or supplementary thereto for annual review of this Agreement and further agrees that the annual review shall include evaluation of its compliance with the approved MND and MMRP. 6.18. Developer agrees to provide City with cash deposits as City may require at its sole discretion to pay all City and related costs for the proceedings and related services for possible formation of a District as referenced in subsection 7.6 of this Agreement, which may be required to be paid prior to formation of a District, or in the event a District is not formed, after the commencement of proceedings related thereto. Said costs may include but are not limited to attorney fees, engineering fees, City staff costs, and City overhead expenses of fifteen percent (15 %) on all out of pocket and professional service costs. Developer further agrees that City may at its sole discretion select the bond counsel, underwriter, financial advisor and any other professional service provider City deems necessary to process the possible formation of a District. 6.19. Developer agrees that any election to acquire property by eminent domain shall be at City's sole discretion, and only after compliance with all legally required procedures including but not limited to a hearing on a proposed resolution of necessity. 6.20 In the event either or both of the "CPI" referred to Sections 6.3, 6.5, 6.7 and 6.10, above and the "referenced Index" referred to Section 6.4, above are discontinued or revised, such successor index with which the "CPI" and or "referenced Index" are replaced shall be used in order to obtain substantially the same result as would otherwise have been obtained if either or both the "CPI" and "referenced Index" had not been discontinued or revised. City Agreements. 7.1. City shall commit reasonable time and resources of City staff to work with Developer on the expedited and parallel processing of applications for Subsequent Approvals for the Project area and shall use overtime and independent contractors whenever possible. Shea Homes Dev Agr 0328 2005.doc -23- `J�V�16sI�r Developer shall assume any risk related to, and shall pay the additional costs incurred by City for, the expedited and parallel processing. 7.2. If requested in writing by Developer and limited to City's legal authority, City at its sole discretion shall proceed to acquire, at Developer's sole cost and expense, easements or fee title to land in which Developer does not have title or interest in order to allow construction of public improvements required of Developer including any land which is outside City's legal boundaries. The process shall generally follow Government Code Section 66462.5 et seq. and shall include the obligation of Developer to enter into an agreement with City, guaranteed by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, engineering fees, City staff costs, and City overhead expenses of fifteen percent (15 %) on all out -of- pocket costs. 7.3. The City Manager is authorized to sign an early grading agreement on behalf of City to allow rough grading of the Project prior to City Council approval of a final subdivision map. Said early grading agreement shall be consistent with the conditions of approval for Tract 5425 and RPD 2003 -02 and contingent on City Engineer and Director of Community Development acceptance of a Performance Bond in a form and amount satisfactory to them to guarantee implementation of the erosion control plan and completion of the rough grading and construction of on -site and off -site improvements. In the case of failure to comply with the terms and conditions of the early grading agreement, the City Council may by resolution declare the surety forfeited. 7.4. City agrees that whenever possible as determined by City in its sole discretion to process concurrently all land use entitlements for the same property so long as said entitlements are deemed complete. 7.5. City agrees that the Park Fee required under subsection 6.7. of this Agreement meets Developer's obligation for park land dedication provisions of state law and City codes. 7.6. City agrees that upon receipt of a landowners' petition by Developer and Developer's payment of a fee, as prescribed in California Government Code Section 53318, Shea Homes Dev Agr 0328 2005.doc -24- 040102 3 as well as payment for costs described in subsection 6.18 of this Agreement, City shall commence proceedings to form a Mello -Roos Community Facilities District ( "District ") and to incur bonded indebtedness to finance all or portions of the public facilities, infrastructure and services that are required by the Project and that may be provided pursuant to the Mello - Roos Community Facilities Act of 1982 (the "Act "); provided, however, the City Council, in its sole and unfettered discretion, may abandon establishment of the District upon the conclusion of the public hearing required by California Government Code Section 53321 and /or deem it unnecessary to incur bonded indebtedness at the conclusion of the hearing required by California Government Code Section 53345. The purpose of any such District may also include fees for funding public facilities, infrastructure and services that are required by the Project to the extent permitted by the Act as determined by bond counsel for the District's bond indebtedness financing. City may select and retain bond counsel, engineers, underwriters, financial advisors and any other professional service providers it deems necessary at its sole discretion to conduct proceedings and related services for possible formation of a District. City further agrees that, to the extent permitted by the Act as determined by bond counsel, Developer may be reimbursed for costs advanced by Developer for formation and related proceedings. In the event that a District is formed, the special tax levied against any residential lot or residence thereon shall afford the buyer the option to prepay the special tax in full prior to the close of escrow on the initial sale of the developed lot by the builder of the residence. 7.7. The City agrees to appoint an affordable housing staff person to oversee the implementation of the affordable housing requirements for the Property required herein for the duration such units are required to be maintained as affordable consistent with the provisions of subsection 6.19 of this Agreement and the Purchase and Sale Agreement. 7.8. City shall facilitate the reimbursement to Developer of any costs incurred by Developer that may be subject to partial reimbursement from other developers as a Shea Homes Dev Agr 0328 2005.doc -25- 000124 condition of approval of a tract map development permit or development agreement with one or more other developers. 8. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after the date the Enabling Ordinance was adopted by the City Council prevents or precludes compliance with any provision of the Agreement, such provision shall be deemed modified or suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code Chapter 15.40. of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of Developer hereunder or render this Agreement invalid or void. At the same time as the referenced annual review, City shall also review Developer's compliance with the MMRP. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, shall be excused during any period of "Excusable Delay ", as hereinafter defined, provided that the Party claiming the delay gives notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike, picketing or other labor dispute; (e) shortage of materials or supplies; (e) damage to work in progress by reason of fire, flood, earthquake or other casualty; (f) failure, delay or inability of City to provide adequate levels of public services, facilities or infrastructure to the Property including, by way of example only, the lack of water to serve any portion of the Property due to drought; (g) delay caused by a restriction imposed or mandated by a governmental entity other than City; or (h) litigation brought by a third party attacking the validity of this Agreement, a Project Approval, a Subsequent Approval or any other action necessary for development of the Property. Shea Homes Dev Agr 0328 2005.doc -26- 000125 11. Default Provisions. 11.1.Default by Developer. The Developer shall be deemed to have breached this Agreement if it: (a) practices, or attempts to practice, any fraud or deceit upon City; or willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer; or (b) fails to make any payments required under this Agreement; or (c) breaches any of the provisions of the Agreement. 11.2. Default by City. City shall be deemed in breach of this Agreement if it breaches any of the provisions of the Agreement. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this subsection of the Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. Every notice shall include a period to cure, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if the defaulting party cannot reasonably cure the breach within the time set forth in the notice such party must commence to cure the breach within such time limit and diligently effect such cure thereafter. The notice shall be deemed given on the date that it is personally delivered or on the date that it is deposited in the United States mail, in accordance with Section 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore Shea Homes Dev Agr 0328 2005.doc -27- 0001x.6 the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. Prior to pursuing the remedies set forth herein, notice and an opportunity to cure shall be provided pursuant to subsection 11.3 herein. The remedies for breach of the Agreement by City shall be injunctive relief and /or specific performance. The remedies for breach of the Agreement by Developer shall be injunctive relief and /or specific performance. In addition, if the breach is of subsections 6.9, 6.10, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, or subsection 6.19 of this Agreement, City shall have the right to withhold the issuance of building permits to Developer throughout the Project from the date that the notice of violation was given pursuant to subsection 11.3 hereof until the date that the breach is cured as provided in the notice of violation. Nothing in this subsection shall be deemed to preclude City from prosecuting a criminal action against any Developer who violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that City gives notice to Developer of a breach, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ( "Financier "), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant to this section shall have the right, at its option and insofar as the rights of City are concerned, to cure any such breach within fifteen (15) days after the receipt of the notice from City. If such breach cannot be cured within such time period, the Financier shall have such additional period as may be reasonably required to cure the same, provided that the Financier gives notice to City of its intention to cure and commences the cure within fifteen (15) days after receipt of the notice from City and thereafter diligently prosecutes the Shea Homes Dev Aqr 0328 2005.doc 000121 same to completion. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Financier to cure the same as specified herein. Notwithstanding any cure by Financier, this Agreement shall be binding and effective against the Financier and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 13. Estoppel Certificate. At any time and from time to time, Developer may deliver written notice to City and City may deliver written notice to Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty (30) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the Developer to the City Council, provided that any such appeal shall be filed with the City Clerk of City within ten (10) days after the affected Developer receives notice of the staff decision. The City Council shall render its decision to affirm, reverse or modify the staff decision within thirty (30) days after the appeal was filed. The Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. 15. Amendment or Termination by Mutual Consent. In accordance with the provisions of Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof then in effect, this Agreement may be amended or terminated, in whole or in part, by mutual consent of City and the affected Developer. Shea Homes Dev Agr 0328 2005.doc -29- 0 00:10 8 15.1 Exemption for Amendments of Project Approvals. No amendment to a Project Approval shall require an amendment to this Agreement and any such amendment shall be deemed to be incorporated into this Agreement at the time that the amendment becomes effective, provided that the amendment is consistent with this Agreement and does not alter the permitted uses, density, intensity, maximum height, size of buildings or reservations and dedications as contained in the Project Approvals. 16. Indemnification. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, Developer's performance pursuant to this Agreement. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement, or any provision thereof, or any Project Approval or Subsequent Approval or modifications thereto, or any other subsequent entitlements for the project and including any related environmental approval. 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Operative Date. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 19. Term. This Agreement shall remain in full force and effect for a term of twenty (20) years commencing on its operative date or until the close of escrow on the initial sale of the last Affordable Housing Unit, whichever occurs last, unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. Expiration of the term or earlier termination of this Agreement shall not automatically affect any Project Approval or Subsequent Approval that has been granted or any right or obligation arising independently from such Project Approval or Subsequent Approval. Shea Homes Dev Agr 0328 2005.doc -30- 000129 Upon expiration of the term or earlier termination of this Agreement, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public records as to the Property, and every portion thereof, to the extent permitted by applicable laws. 20. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "B" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 21. Entire Agreement. This Agreement and those exhibits and documents referenced herein contain the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developer, jointly or severally. Shea Homes Dev Agr 0328 2005.doc -31- 0001.30 25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City within the period required by Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof then in effect. 27. Cooperation Between City and Developer. City and Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Purchase and Sale Agreement, the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. 29. Joint Preparation. This Agreement shall be deemed to have been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. 30. Governing Law and Venue. This Agreement is made, entered into, and executed in the County of Ventura, California, and the laws of the State of California shall govern its interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this Agreement shall be filed in the appropriate court having jurisdiction in the County of Ventura. 31. Attorneys' Fees. In the event any action, suit or proceeding is brought for the enforcement or declaration of any right or obligation pursuant to, or as a result of any alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees and litigation expenses and costs, and any judgment, order or decree rendered in such action, suit or proceeding shall include an award thereof. Shea Homes Dev Agr 0328 2005.doc -32- 000131- 32. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument. IN WITNESS WHEREOF, Shea Homes, Limited Partnership, and City of Moorpark have executed this Development Agreement on the date first above written. OWNER /DEVELOPER Shea Homes, Limited Partnership By: J.F. Shea, Co., Inc., a Nevada corporation, its General Partner BV: Steve Seemann Assistant Secretary BV: Jeff Palmer Assistant Secretary Shea Homes Dev Agr 0328 2005.doc -33- CITY OF MOORPARK Patrick Hunter Mayor 000132 To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: Shea Homes, Limited 30699 Russell Ranch Westlake Village, CA Attn: Steve Seemann With a Copy To: EXHIBIT "B" ADDRESSES OF PARTIES Partnership Road, Suite 290 91361 Jackson, DeMarco & Peckenpaugh 2030 Main Street, Suite 1200 Irvine, CA 92623 Attn: Andrew Bernstein, Esq. 000133 EXHIBIT "C" PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (the "Agreement ") is made and entered into as of the day of , , by and between (hereinafter referred to as "DEVELOPER "), and the CITY OF MOORPARK ("CITY"). RECITALS WHEREAS, California Health & Safety Code Section 33413 (b) (2) (A) (i) requires that "at least 15 per cent of all new and substantially rehabilitated dwelling units developed within a project area under the jurisdiction of an agency by public or private entities or persons other than the agency shall be available at affordable housing cost to, and occupied by, persons and families of low or moderate income "; and WHEREAS, California Health & Safety Code Section 33413(c)(1) requires such dwelling units to remain affordable for the longest feasible time, but for not less than 45 years for homeownership units; and WHEREAS, affordable housing cost is defined in California Health and Safety Code Section 50052.5(b)(2), with the components of affordable housing cost as found in Section 6920 of Title 25 of the California Code of Regulations; and WHEREAS, Developer has received City approval to develop 102 attached and detached units on approximately 14.8 acres, including the private street known as Fremont Street, generally located south and east of said Fremont Street consistent with the conditions of approval for Vesting Tentative Tract Map No. 5425 (TTM 5425) and Residential Planned Development Permit No. 2003 -02 (RPD 2003 -02), collectively the Project, and City Council Resolution No. 2005- referred to as the Conditions of Approval; and WHEREAS, on May 23, 2005 the DEVELOPER and CITY entered into a Development Agreement (Development Agreement) for the Project; and WHEREAS, in the Development Agreement Developer agrees to provide five units to moderate income households, nine units to low income buyers, and six units to very low income buyers of 000134 approximately 1,600 square feet at sale prices and terms and conditions as referenced in Sections 2. and 3. of this Agreement. NOW, THEREFORE, IT IS AGREED by and between the DEVELOPER and the CITY as follows: SECTION 1. The CITY shall be responsible for marketing the affordable units, selecting and qualifying eligible buyers for the units, and overseeing the escrow processes to sell the affordable units to moderate, low income and very low income households. In the event of termination of this Agreement, Developer shall in any event comply with the Conditions of Approval and all terms and conditions of the Development Agreement. SECTION 2. Terms of Sale. 2.1 The terms and conditions of the sale of twenty (20) units in the Project to qualified moderate, low and very low income buyers or City in lieu of said buyers shall be consistent with the Development Agreement. The twenty (20) units referenced above are collectively referred to as the affordable units or affordable housing units. 2.2 DEVELOPER shall satisfy all mechanic's, laborer's, materialman's, supplier's, or vendor's liens and any construction loan or other financing affecting any unit or lot in the Project which has been designated for an affordable unit, before the close of escrow for that affordable unit. 2.3 DEVELOPER agrees if it sells any of the affordable units directly to a qualified moderate, low or very low income buyer, per Section 2.1. above, all requirements of the buyer, including, but not limited to, completion of a CITY approved homebuyer education training workshop, and CITY approved documents for the transaction, including a promissory note, deed of trust, and resale restriction agreement and option to purchase (the "Affordability Documents "), shall be included as a requirement of the sale. The language of all such documents shall be approved by CITY at its sole discretion. 2.4 The parties agree that prior to and upon the sale of an affordable unit to a qualified buyer or CITY, CITY may at its sole discretion take any actions and impose any conditions on buyer eligibility and on said sale or subsequent sale of the unit to ensure ongoing affordability to moderate, low and very low income households and related matters. After the sale of an 2 S: \City Manager \Everyone\Agreements\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 000135 affordable unit by DEVELOPER to a qualified buyer or CITY, CITY shall have sole responsibility for approving any subsequent sale of that housing unit and enforcing the Affordability Documents. DEVELOPER further agrees that CITY has the sole discretion to make all determinations on buyer eligibility including but not limited to income and household size. 2.5 Developer agrees that the required very low income, required low income, and the required moderate income affordable units shall be provided by Developer and occupied by qualified buyers (or at City's sole discretion sold to City) on terms consistent with this agreement and the Development Agreement as specified in the following schedule: Prior to Occupancy of # of Very Low Income Units # of Low Income Units # of Moderate Income Units 21St Unit 1 2 1 41St Unit 1 2 1 61St Unit 1 2 1 81St Unit 1 2 1 101St Unit 2 1 1 Total 6 9 5 2.6 The required twenty (20) affordable units within the Project shall be located on unit (may also be referred to as pad or lot) numbers 2, 4, 9, 18, 24, 46, 50, 54, 56, 60, 62, 67, 89, 94, 96, 98, 99, 100, 101, and 102. The City Manager or designee may approve different unit numbers within the Project so long as the unit contains no less than 1,600 square feet. The CITY shall determine at its sole discretion which of the affordable units within the Project will be sold to the nine (9) qualified low income households, the six (6) very low income households, and the five (5) moderate income households. SECTION 3. Conditions of Purchase and Sale. If a qualified moderate, low or very low income buyer is identified by the CITY prior to or at the time of completion of any one of the affordable units, and by the date on which final inspection approval is issued for said unit, DEVELOPER shall open escrow for the sale of said unit for the same sales price as herein stipulated and subject to Section 2. above, and shall enter escrow directly with the buyer identified by CITY, and proceed to closing of said escrow. If a qualified moderate, low or very low income buyer has not been identified at the time DEVELOPER receives its final inspection approval for and an affordable unit in the Project, CITY agrees to purchase the affordable unit 3 S: \City Manager \Everyone\Agreements\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 000136 required to be provided by DEVELOPER for the amount and at the time specified in the Development Agreement. SECTION 4. Quality of Construction. DEVELOPER and CITY agree that shall be designated as the moderate, low and very low income units. Each affordable unit shall be not less than 1,600 square feet in size. DEVELOPER warrants that the quality of materials and construction techniques of the affordable units sold to the CITY shall in all manner be identical to that of all other units constructed in this Project and subject to all Conditions of Approval and shall meet all Building Codes. SECTION 5. Amenities and Warranties. DEVELOPER acknowledges that the affordable units will not be occupied by the CITY but, if purchased by the CITY, will be sold to qualified low or very low income buyer(s) . DEVELOPER agrees to provide the same amenities and home warranties associated with the affordable units purchased by the CITY as the amenities and home warranties associated with the market rate units. DEVELOPER declares that all such warranties shall inure to the benefit of and be enforceable by the ultimate occupants of the affordable units, and that all warranties by subcontractors and suppliers shall inure to the benefit of and be enforceable by such occupants. The CITY shall have the same choices of finish options as purchasers of market rate units in this Project and final walk- through approval of condition of unit before close of sale. Any options provided to buyers of market rate units shall be provided to CITY or buyer(s) of the affordable units, including, but not limited to, color and style choices for carpeting and other floor coverings, counter tops, roofing materials, exterior stucco and trim of any type, fixtures, and other decorative items. SECTION 6. Defense and Indemnity. DEVELOPER agrees to indemnify, hold harmless and defend at its sole expense, with counsel reasonably acceptable to CITY, any action brought against it or CITY by a purchaser of an affordable unit for any alleged construction defects or related problems, or any action brought by any party to approve, extend or renew any permit, related actions under CEQA, any subsequent permits to implement /construct the Project and this Agreement. DEVELOPER further agrees to reimburse CITY for any court costs and /or attorneys' fees which CITY may be required by the court to pay as a result of any such action. CITY may, at its sole discretion, participate in the defense of any such action at CITY's cost, but such participation shall not relieve DEVELOPER of its obligation under this Section. 4 S: \City Manager \Everyone\Agreements\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 00013 '� SECTION 7. Waiver. DEVELOPER hereby covenants not to bring any action against CITY to (a) attack, review, set aside, void, or otherwise annul this Agreement, in whole or in part, or (b) recover any compensation or obtain any relief for any injury, damage, loss, or deprivation of any right alleged to have been sustained as a result of CITY's action on any matter related to this Agreement. SECTION 8. Defaults and Remedies. Each of the following shall constitute an "Event of Default" by the DEVELOPER: 8.1.1 Failure by the DEVELOPER to duly perform, comply with and observe any of the conditions, terms, or covenants of TTM No. 5425 or RPD No. 2003 -02, or this Agreement, or the Development Agreement, if such failure remains uncured ten (10) days after written notice of such failure from the CITY to the DEVELOPER in the manner provided herein or, with respect to a default that cannot be cured within ten (10) days, if the DEVELOPER fails to commence such cure within such ten (10) day period or thereafter fails to diligently and continuously proceed with such cure to completion. 8.1.2 Any representation or warranty contained in this Agreement or in any certificate or report submitted to the CITY by DEVELOPER proves to have been incorrect in any material respect when made. 8.1.3 A court having jurisdiction shall have made or rendered a decree or order (a) adjudging DEVELOPER to be bankrupt or insolvent; (b) approving as properly filed a petition seeking reorganization of DEVELOPER or seeking any arrangement on behalf of DEVELOPER under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or of any state or other jurisdiction; (c) appointing a receiver, trustee, liquidator, or assignee of the DEVELOPER in bankruptcy or insolvency or for any of its properties; or (d) directing the winding up or liquidation of the DEVELOPER, providing, however, that any such decree or order described in any of the foregoing subsections shall have continued unstayed or undischarged for a period of ninety (90) days. 8.1.4 The DEVELOPER shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment or execution on any substantial part of its property, unless the property so assigned, sequestered, attached, or S: \City Manager \Everyone\Agreements\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 0001,38 executed upon shall have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure hereunder) or prior to sale pursuant to such sequestration, attachment, or execution. If the DEVELOPER is diligently working to obtain a return or release of the property and the CITY's interests hereunder are not imminently threatened in the CITY's reasonable business judgment, then the CITY shall not declare a default under this subsection. 8.1.5 The DEVELOPER shall have voluntarily suspended its business or dissolved. 8.1.6 Should there occur any default declared by any lender under any loan document or deed of trust relating to any loan made in connection with the Project or property on which Project is to be constructed, which loan is secured by a deed of trust or other instrument of record. 8.2 Liens. DEVELOPER shall pay and promptly discharge when due, at DEVELOPER's cost and expense, all liens, encumbrances and charges upon the Project or the underlying property, or any part thereof or interest therein (except the lien of any mortgage, deed of trust or other recorded instrument securing any construction or permanent financing for the Project), provided that the existence of any mechanic's, laborer's, materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation of this Section if payment is not yet due under the contract which is the foundation thereof and if such contract does not postpone payment for more than forty -five (45) days after the performance thereof. DEVELOPER shall have the right to contest in good faith the validity of any such lien, encumbrance or charge, provided that within ten days after service of a stop notice or ninety days after recording of a mechanic's lien, DEVELOPER shall deposit with CITY a bond or other security reasonably satisfactory to CITY in such amounts as CITY shall reasonably require, but no more than the amount required to release the lien under California law and provided further that DEVELOPER shall thereafter diligently proceed to cause such lien, encumbrance or charge to be removed and discharged, and shall, in any event, cause such lien, encumbrance or charge to be removed or discharged not later than sixty (60) days prior to any foreclosure sale. If DEVELOPER shall fail either to remove and discharge any such lien, encumbrance or charge or to deposit security in accordance with the preceding sentence, if applicable, then, in addition to any other right or remedy of CITY, CITY may, but shall not be obligated to, discharge the 6 S: \City Manager \Everyone\Agreements\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 000:139 same, without inquiring into the validity of such lien, encumbrance or charge nor into the existence of any defense or offset thereto, either by paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in a court a bond or the amount or otherwise giving security for such claim, in such manner as is or may be prescribed by law. DEVELOPER shall, immediately upon demand therefor by CITY, pay to CITY an amount equal to all costs and expenses incurred by CITY in connection with the exercise by CITY of the foregoing right to discharge any such lien, encumbrance or charge. To the extent not paid, all costs and expenses paid by the CITY shall be a lien on the Property pursuant to Civil Code Section 2881. 8.3 Costs of Enforcement. If any Event of Default occurs, CITY may employ an attorney or attorneys to protect its rights hereunder. Subject to California Civil Code Section 1717, DEVELOPER promises to pay to CITY, on demand, the fees and expenses of such attorneys and all other costs of enforcing the obligations secured hereby including without limitation, recording fees, receiver's fees and expenses, and all other expenses of whatever kind or nature, incurred by CITY in connec- tion with the enforcement of the obligations secured hereby, whether or not such enforcement includes the filing of a lawsuit. 8.4 Remedies Not Exclusive. CITY shall be entitled to enforce payment and performance of any indebtedness or obligation of DEVELOPER arising under this Agreement and to exercise all rights and powers under this Agreement or any law now or hereafter in force, notwithstanding some or all of the said indebtedness and obligations secured hereby may now or hereafter be otherwise secured, whether by guaranty, mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance of this Agreement nor its enforcement by court action shall prejudice or in any manner affect CITY's right to realize upon or enforce any other security now or hereafter held by CITY, it being agreed that CITY shall be entitled to enforce this Agreement and any other security now or hereafter held by CITY, as applicable, in such order and manner as CITY may in its absolute discretion determine. No remedy herein conferred upon or reserved to CITY is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by this Agreement to the CITY may be exercised, concurrently or independently, from time S: \City Manager \Everyone\Agreements\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 000:140 to time and as often as may be deemed expedient by the CITY, and it may pursue inconsistent remedies. 8.5 Enforcement; Specific Performance. The CITY shall have the right to mandamus or other suit, action or proceeding at law or in equity to require the DEVELOPER to perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions hereof. 8.6 Right of Contest. The DEVELOPER shall have the right to contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute an Event of Default hereunder. Any such contest shall be prosecuted diligently and in a manner unprejudicial to the CITY or the rights of the CITY hereunder. 8.7 Action at Law; No Remedy Exclusive. The CITY may take whatever action at law or in equity as may be necessary or desirable to enforce performance and observance of any obligation, agreement or covenant of the DEVELOPER under this Agreement. No remedy herein conferred upon or reserved by the CITY is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of such right or power, but any such right or power may be exercised from time to time and as often as CITY may deem expedient. In order to entitle the CITY to exercise any remedy reserved to it in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or required by law to be given. 8.8 Termination. The City's rights and remedies set forth herein shall include as a cumulative remedy the right to terminate this Agreement if an Event of Default is not cured, pursuant to section 8.1 herein. Such termination shall, at a minimum, require full compliance by the DEVELOPER with the Conditions of Approval and all terms and conditions of the Development Agreement. SECTION 9. Warranty of Authorized Signatories. Each of the signatories hereby warrants and represents that he or she is S: \City Manager \Everyone \Agreements\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 000141 competent and authorized to execute this Agreement on behalf of the party for whom he or she purports to sign. SECTION 10. Assignment. DEVELOPER agrees that CITY, at CITY's sole discretion, may assign this Agreement to the Redevelopment Agency of the City of Moorpark (AGENCY). SECTION 11. Miscellaneous. (a) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns, legal representatives, parent, subsidiary, affiliated and related entities, officers, directors, principals, agents, servants, employees, representatives, and all persons, firms, associations and /or corporations connected with them, including, without limitation, their insurers, sureties and /or attorneys. (b) Attorneys' Fees. In the event that any action, suit or other proceeding is instituted to remedy, prevent or obtain relief from a breach of this Agreement, or arising out of a breach of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in such action, suit or other proceeding, including any and all appeals or petitions therefrom. (c) Severability. Should any part, term or provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement. (d) Assistance of Counsel. DEVELOPER and CITY acknowledge that: (i) they have been represented by independent counsel in connection with this Agreement; (ii) they have executed this Agreement with the advice of such counsel; and (iii) this Agreement is the result of negotiations between the Parties and the advice and assistance of their respective counsel. Each of the Parties has equally participated in the drafting and preparation of this Agreement, and it is the intention of the Parties that the construction or interpretation of this Agreement shall be made without reference to the Party who drafted any portion or particular provision of this Agreement or the relative size and or bargaining power of the Parties. SECTION 12. Moratorium on Development. Nothing in this Agreement shall prevent CITY, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of 9 f L' /� S: \City Manager \Everyone\Agreem 0 ents\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 0 014 ti Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City -wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage, including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. SECTION 13. Waiver of Protest Rights. DEVELOPER agrees that any fees and payments for this Project shall be made without reservation, and Developer expressly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary thereto, or any other applicable state or federal law. SECTION 14. Action at Law; No Remedy Exclusive. The CITY may take whatever action at law or in equity as may be necessary or desirable to enforce performance and observance of any obligation, agreement or covenant of the DEVELOPER under this Agreement. No remedy herein conferred upon or reserved by the CITY is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of such right or power, but any such right or power may be exercised from time to time and as often as CITY may deem expedient. In order to entitle the CITY to exercise any remedy reserved to it in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or required by law to be given. SECTION 15. Notices. All notices and other communications which a party desires or is required to give respecting this Agreement must be in writing addressed to the recipient party at its address set forth beneath its signature to this Agreement and must be given personally (including by commercial messenger or courier) or by First Class United States Mail, postage prepaid. Notices shall be deemed to have been effectively given, if given personally, upon receipt (or upon attempted delivery if receipt is refused) , and if mailed, three (3) business days following deposit in the United States Mail. 10 S: \City Manager \Everyone\Agreements\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC O(DO .9 3 A party may change its address for notices only by a notice given in the foregoing manner. SECTION 16. Joint Preparation. This agreement shall be deemed to have been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. SECTION 17. Amendments and Waivers. No term or provision of this Agreement can be amended or waived, either orally or by a course of conduct, but only by an instrument in writing signed by the party against whom enforcement of such amendment or waiver is sought. SECTION 18. Entire Agreement. This Agreement, the Development Agreement, and the Conditions of Approval for this Project constitute the entire agreement and understanding of the parties with respect to its subject matter and they supercede all prior and contemporaneous agreements and understandings of the parties with respect to that subject matter. Should any provision of this agreement be in conflict with any provision of the Development Agreement or Conditions of Approval, the Development Agreement shall prevail. SECTION 19. Headings and Attachments. The title of this Agreement and the headings of its sections are for convenience of reference only and are not to be referred to in interpreting or construing this Agreement. However, all attachments and exhibits to this Agreement, as well as the Recitals, are a part of this Agreement. SECTION 20. Governing Law and Interpretation. This Agreement is to be governed by and construed in accordance with the laws of the State of California. No term or provision of this Agreement is to be construed against a party by reason of its having drafted the same. This Agreement is made, entered into and executed in Ventura County, California, and any action filed in any court for the interpretation, enforcement or other action arising from any term, covenant or condition herein shall be filed in Ventura County. 11 S: \City Manager Tveryone\?.greements\Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 000144 CITY: CITY OF MOORPARK By Patrick Hunter Mayor Attest: 3-1 City Clerk City of Moorpark Address: 799 Moorpark Avenue Moorpark, California 93021 DEVELOPER: SHEA HOMES, LIMITED PARTNERSHIP By J.F. Shea, Co., Inc., a Nevada Corporation, its General Partner Shea Homes, Limited Partnership 30699 Russell Ranch Road Suite 290 Westlake Village, CA 91361 Attn: Steve Seemann Assistant Secretary Shea Homes, Limited Partnership 30699 Russell Ranch Road Suite 290 Westlake Village, CA 91361 Attn: Jeff Palmer Assistant Secretary Jackson, DeMarco & Peckenpaugh 2030 Main Street, Suite 1200 Irvine, CA 92623 Attn: Andrew Bernstein, Esq. 12 S: \City Manager\Everyone\Agreements \Purchase and Sale Agreement w Shea Homes No Legis 032905.DOC 000119.5